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Guatemala Court’s Landmark Ruling Best Kept Secret

Washington, D.C.— The highest court in Guatemala made a precedent setting decision nearly six months ago that should have launched a wave of change nationwide for its indigenous communities. Instead, the Guatemalan government has not implemented this court order in a proper and timely fashion. The case is about recognizing collective property and land rights for Agua Caliente, a Maya Q’eqchi’ indigenous community of 385 people in El Estor, in the country’s Izabal province.

"Many indigenous leaders in the country do not even know about the decision that could change their lives," said Leonardo Crippa, Indian Law Resource Center attorney. "It is important for Guatemala to take action and recognize the collective rights of the Agua Caliente community."

For more than 40 years, the Agua Caliente community has worked for the recognition of its land rights while faced with threats to their human rights, including forced evictions from their traditional lands to make way for nickel exploitation. Through this precedent setting decision by the Constitutional Court on February 8, 2011, the community’s collective property rights were finally recognized, which means that the mining permits and activities on its land and forced evictions are in violation of its land rights.

The Court ordered the executive branch to take all corrective actions necessary to properly title Agua Caliente’s lands. This includes replacing pages that were removed from the official land registry book, pages that show land ownership belongs to the Agua Caliente community, but which have gone missing. According to the Court, the executive branch’s failure to properly register and title indigenous lands violates Agua Caliente’s land rights and rights to equality before the law, as well as the legal principle of self-determination. “This ruling has policy implications for Guatemala’s land registry system since it reinforces the state’s duty to properly title and register indigenous lands,” noted Crippa.

In 2006, the Guatemalan government issued a mining permit to the Guatemalan Mining Company (CGN), a subsidiary of the Canadian company, HudBay Minerals Inc. Seventeen Maya Q’eqchi’ communities, including Agua Caliente, were never consulted even though they are located within the area granted for nickel extraction under the permit.

“This ruling sends a clear message to all extractive industry companies interested in exploiting the natural resources located within indigenous lands in Guatemala, especially to those with interests in El Estor. The mining must stop,” said Crippa. “The government must comply with its legal responsibilities before the Court and respect principles of human rights laws.”

The Indian Law Resource Center and Defensoria Q’eqchi’, an indigenous human rights organization based in El Estor, have been advising the communities, and in 2009, brought forward this litigation on behalf of Agua Caliente, the community with the largest depositions of nickel on their lands.

Because of rich natural resources in the Maya Q’eqchi’ territory, the Community has faced efforts by local government and mine security forces to evict them from their lands for more than 40 years. These evictions, often violent, threaten the safety of the community members, leaders, and local counsel. The community’s cultural and spiritual beliefs are deeply rooted to the land they have traditionally possessed and are critical for their physical and cultural survival. The communities have long been concerned about the impacts of mining on the environment, as they rely on the natural resources of the land and the nearby Lake Izabal, the largest lake in Guatemala, for food and economic resources. Without respecting Agua Caliente’s land rights and without consultation with the community, Guatemala continues to act in opposition to domestic and international law.

Statement by the Indian Law Resource Center

The Indian Law Resource Center (Center) is the international legal representative of the Maya Q’eqchi’ Agua Caliente Community (Community), which possesses its traditional lands in El Estor in the Department of Izabal, Guatemala. On February 8, 2011, the Constitutional Court of Guatemala issued a ruling affirming the property rights of the Community to its land. The Court ordered the executive branch, through its land titling governmental agency FONTIERRAS, to adopt the necessary measures to title and register the lands of the Community. The ruling occurred despite permits that were granted by the Ministry of Energy and Mines authorizing the Guatemala Mining Company (CGN) to exploit nickel on lands belonging to the Community. In this case, FONTIERRAS was sued, and CGN and the General Land Registry office were interested parties. The judgment of the Constitutional Court is definitive and not subject to negotiation tables.

In a public statement issued on March 17, 2011, the Government of Guatemala stated that for the purpose of preserving good governance and the rule of law, it would immediately put into effect all eviction orders related to illegal actions. This approach, among others, is part of the roundtable dialogue that this administration promotes as a matter of policy. In response to such a statement, the Center expresses the following:

Possession of traditional lands by indigenous communities does not constitute an illegal action. On the contrary, this possession embodies the special relationship that indigenous peoples maintain with their lands, territories, and natural resources. International law protects this relationship and stresses its material, economic, and spiritual nature.

The land titling process should not be delayed to benefit extractive industries to the detriment of indigenous communities. The unwarranted delay and the inefficiency of FONTIERRAS in carrying out the land titling process is public knowledge. These irregularities contribute to and perpetuate land conflicts.

The government must respect and comply with Court rulings that favor indigenous communities over extractive industry interests, not promote negotiation tables. The lack of compliance and questioning of these rulings seriously undermines the division of powers of the State and the rule of law.

The Office of Attorney General should refrain from issuing and executing eviction orders against indigenous communities whose property rights to land have been recognized by the courts. Failure to do this undermines the fundamental division of the powers of the State.

The Ministry of Energy and Mines should invalidate permits for exploitation of subsurface resources (1) that have been granted without a process of prior consultation with potentially affected indigenous communities, and (2) that are in direct violation of these communities’ property rights to land as recognized by court rulings. Failure to rescind permits granted under these conditions violates indigenous communities’ rights and compromises the international responsibility of the State.

For these reasons, the Center calls upon the Government to take all the necessary administrative and legal measures to comply with the Constitutional Court ruling in favor of the Community, and not negotiate it. In this case, only such compliance would lead the Government to preserve governance and the rule of law, and not compromise the State’s international responsibility before the Inter-American System of Human Rights.

Washington, DC, United States, July 14, 2011

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About the Indian Law Resource Center

The Indian Law Resource Center is a non-proﬁt law and advocacy organization established and directed by American Indians. The Center is based in Helena, Montana, and also has an office in Washington, DC. We provide legal assistance without charge to indigenous peoples throughout North, Central and South America that are working to protect their lands, resources, human rights, environment and cultural heritage. For more information, please visit us online at www.indianlaw.org or www.facebook.com/indianlawresourcecenter.